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MEMBER DIARY

President Obama’s Constitution

In the broad arc of American history the Obamacare episode will be known not so much for its incompetence and deceipt or its near destruction of the world’s best health care system as for the most broadly understood example of a decline in constitutional protections against an imperial presidency. Consider:

There’s lots to dislike about Obamacare – and most Americans do dislike it; the most recent CNN poll shows 35% approval and 62% disapproval. Let’s think of that in three parts.

1. On the policy. The basic premise that there should not be millions of uninsured in the richest nation on earth has resonance. Most, except the far Left, would agree that it is good for the major elements of the delivery system – doctors, hospitals, pharmaceutical and device manufacturers, and insurers – to remain in the private sector. So far, so good. From there extends a long line of policy decisions which doomed the Obama/Pelosi solution – requiring that all Americans be insured, whether they wanted to be or not; requiring employers to provide policies which they found financially burdensome or ethically offensive; disallowing low cost policies with minimal coverage favored by millions; requiring inclusion of “social agenda” items such as morning after pills; costly inclusions like the federally subsidized expansion of Medicaid; a “death panel” to determine what life saving procedures would be compensated. Once the government broke the system, they owned it.

2. On the implementation. From the corrupt sausage making in Congress to the horrendous web site rollout the highly visible performance could not be worse. Nancy Pelosi’s “we need to pass it to find out what’s in it” and Harry Reid’s “Cornhusker Kickbacks” were instrumental in the rise of the Tea Party – yes that was only four years ago. The web site fiasco and the president’s “lie of the year” about keeping doctors and insurance policies (e.g. no impact on the middle class) have driven the collapse of approval for Obamacare and Obama since mid-summer.

3. On the constitutional implications. While not the real cause of public opposition, this is where the greatest damage to the Republic has been done. Judge Roberts’ tortured decision that the individual mandate was a tax, and therefore constitutional, fundamentally changes the relationship between the citizens and the government. Most would disagree with the Supreme Court, but for now that is the law of the land. (There is still a glimmer of hope that the Act will be overturned because, as a tax, it should have originated in the House, but that is a faint glimmer.)

Equally troubling, and as yet legally untested, are the steps taken by the administration to change the law without Congressional approval – ironically, in several cases after threatening to veto similar House actions.

a. Administrative convenience.

- The decision to move the deadline for sign-up from December 16 to December 23, then December 24, then beyond and the request that insurers backdate policies for a week or two for those who sign up after January 1 reflect panic that there would be more cancellations than new sign ups. Bad business; bad form; but probably within reasonable administrative discretion.

- In September the Office of Personnel Management, at the direction of the White House and with the support of Congressional leaders, without legislation allowed subsidies to Congressional staffers to cover their increased Obamacare costs.

c. Fundamental alterations by fiat.

- The July decision to delay the large employer mandate until 2015 runs clearly into specific language in the Affordable Care Act, and was triggered by the realization that it would most likely cause a large move away from employer-sponsored plans. If the cancellation of 5 million individual plans has caused a firestorm, the large employer version of policy cancellations will be a multiple if it is implemented as planned in 2015.

- The law included 14 “hardship” exemptions from the mandate (for example, homeless; domestic violence victim; or utilities shut off), but in a deliciously ironic move Obama added a 15th – losing insurance due to Obamacare. He also allowed those with cancelled policies to obtain one of his favorite political targets, pariah plans which offer limited “catastrophic” coverage for low premiums.

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There is other major damage being done to our constiturional republic – use of the IRS to suppress political opposition; rampant domestic and international abuse by the National Security Agency; deliberate non-enforcement of immigration laws against youth – but Obamacare will be the highlight. Corrupt from beginning to end; acutely known and understood by the massees; a painful demonstration of Nobel Prize winner Friederich Hayek’s claim in The Road to Serfdom that large central governments cannot effectively manage complex aspects of society.

We optimists hope that this will be an inflection point; that the furor over Obamacare will be more than an irritated reaction to Obama’s abuse of the Middle Class; that the Tea Party’s enthusisam for small government, individual liberty, and constitutional protections will guide the next generation. A thought for the new year.